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Thursday, May 28, 2009

"Federal Court? Wow. Never Thought of That."

The above quote, from Matt Coles, Director of the ACLU's LGBT Project, appears in the New York Times article reporting on the Ted Olson David Boies lawsuit challenging Prop. 8 in federal court. (Ethan blogged about this lawsuit yesterday.) One of the commentors to Ethan's post expressed some cynicism about Olson's agenda, and in the Times article a number of prominent gay rights advocates, like Coles, expressed some reservations about the timing of the suit. I have no clue what Olson's (and Boies's) reasons are -- maybe they're sincere, or maybe, as suggested by a commentor to Ethan's post, they're cynical. It's surely the case that the lawsuit represents a massive gamble: if it's successful in the lower courts the Supreme Court is bound to step in, and if Olson and Boies lose at the Court then the issue will be off the federal constitutional radar for a long time, maybe decades.

What I'm curious about is the appropriateness of cause-driven lawyers taking up a cause that wasn't previously theirs, and taking steps opposed, or at least avoided, by the architects of that cause's long-term litigation strategy. To translate: it's apparently been the common wisdom among gay rights advocates that premature federal constitutional litigation on gay marriage could be harmful to that cause. That makes a lot of sense to me, though for present purposes what's important is that the (fair enough, self-appointed) leaders of the movement think so. Then in step Olson and Boies, filing their challenge the very day the state supreme court announced its impending decision in the Prop. 8 case.

Again, leave aside the possibility that this suit is a cynical ploy to create a blockbuster Roe-like federal constitutional/political issue just as the Republican Party is finding itself devoid of winning arguments it can make to the American people. I don't like casual allegations of bad faith, and it would impugn a lawyer's reputation to make this kind of charge without evidence. And the presence of David Boies -- surely, nobody's fool -- casts further doubt on the conspiracy thesis, unless Olson and Boies are simply making different political calculations. Rather, what I'm interested in is the interloper aspect of the lawsuit, where Olson and Boies swoop down, pluck some plaintiffs off the ground and fly off the federal court with a high-profile lawsuit and even a fancy new organization.

Is this appropriate? Note, this is not an average litigator getting a visit from a same-sex couple who really want to get married and decides to not worry about larger political implications but simply to advocate for the rights of the clients in front of him. That seems absolutely appropriate to me -- maybe even compelled, though I don't know enough about the relevant legal ethics rules to make that last judgment. I have got to assume that Olson and Boies picked this cause, and only then went looking for clients. Indeed, Olson's comments yesterday support this interpretation, which of course jibes with what we all know about high-profile lawyers like these two -- a lot of their work is all about causes, not individual clients per se.

If that's true then it's hard to avoid the conclusion that Olson and Boies have intervened in the strategy directed by other cause lawyers -- among others, the ones quoted in the Times article as expressing concern and even annoyance about the lawsuit -- who have made gay rights their lives' work. (Hence the title of this post.) At best this strikes me as naive; at worst (again leaving aside the cynical political explanation) it strikes me as an arrogant hijacking of a long-term process worked out by someone else. If Thurgood Marshall were still alive he would probably react to this lawsuit by expressing gratitude for the unpopularity of civil rights litigation in the 1930's: at least he didn't have to fend off others' attempts to bring a school desegregation case to the Court before the time was ripe.

Just to state the obvious: if this lawsuit is successful then I'll be thrilled. I wish Olson and Boies good luck and good lawyering. But they've grabbed a baby out of someone else's hands and are running pretty fast with it. I really hope they don't drop it.

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Comments

I certainly don't think that filing this lawsuit was a great idea, from a movement/strategic perspective. But my guess is that the background dynamics may well be more complicated than you postulate, about how it came about that Boies and Olson came to file the suit. It is quite conceivable that they were approached by some movement folks who had deep pockets, strong views about tactics, and a stated intent to find some lawyer to file the suit no matter who turned them down. This doesn't necessarily mean that it was wise for these guys to take the case, but it does change the lawyer's decisionmaking process. Life as a "cause" lawyer can be complicated (even, or especially, for those who are big-$ lawyers along with being "cause" lawyers sometimes).

Posted by: Sam | May 28, 2009 10:48:56 AM

I, too, am just assuming this isn't a cynical effort on Olson's behalf. If it is Olson being sinister, then it is sinister. I don't have much to add on that.

But you do raise an interesting question, and one that I've been struggling with these days. Obviously, it was apparent to most of us law professor types that gay rights leaders were avoiding the federal constitutional showdown. But I find it hard to sympathize and collude with the "cause lawyers" who make "gay rights their lives' work" in this context because, in my humble view anyway, their Prop 8 arguments in the California Supreme Court struck me as quite wrong-headed -- and, because these are all smart people, I have to assume consciously so. Maybe these arguments were offered by true believers but I really think they were quite bad arguments, and they should have known it. Because I disagreed on the legal merits with what the self-appointed leaders of a cause I believe in did, I can't fault some for trying to steal the show.

More, it isn't at all clear to me that the rank-and-file on the side of gay equality would be any more opposed to the strategy Olson and Boies are taking than the strategy their self-appointed leaders took for them. If given the choice (without being told who is behind either strategy), I can't see the cause leaders getting many more votes for their approach than the other side would get. The May 2009 press release you link to from the cause leaders is long overdue -- but this isn't the strategy ("Make Change, Not Lawsuits" (with some exceptions for state litigation)) they really pursued in Prop 8: they loudly got onto the bandwagon of the lawsuit rather than trying to convince their constituents that there might have been a better way (at the ballot box). If they had chosen that path and released this press release before May 27, 2009, I might want to be more deferential to their leadership. But I don't think their leadership on the Prop 8 question entitles them to a monopoly on the cause.

All that said, it doesn't mean that I don't worry that this suit will fail and badly, setting back the quest for equality a few years. But the claim here, in my view, has at least lawyerly and intellectual integrity (and, frankly, a better shot at winning). That was really the small point I was trying to make.

Posted by: Ethan Leib | May 28, 2009 11:17:05 AM

I too question the wisdom of bringing this suit at this time.

However, I don't know why it should be that the longtime standard bearers for the cause somehow "own" the issue. Why would they? I mean, I can understand why people would defer to them on cause-related issues; but I don't see why someone would be wrong not to.

So long as the legal claims are serious and the arguments colorable, why can't people make their own strategic calculations? Others can try to persuade them not to bring the suit for strategic reasons; but Boies and Olson are not beholden to the leaders of the cause, nor should they be.

Posted by: Hillel Y. Levin | May 28, 2009 11:27:21 AM

Excellent argument against making policy through litigation.

Posted by: JP | May 28, 2009 1:00:11 PM

It might be worth a moment to meditate on why the post has such a tone of sarcasm, resentment, and envy.

Posted by: law type | May 28, 2009 2:47:20 PM

FWIW, I'd be pretty interested to know Bill's response to JP and Hillel.

Posted by: Orin Kerr | May 28, 2009 3:26:38 PM

Hillel raises the following question: "So long as the legal claims are serious and the arguments colorable, why can't people make their own strategic calculations?" But doesn't this assume that the legal claims are sincere ones? Suppose the claims are colorable but highly unlikely to succeed? Also, if pressing the claims would clearly not be in the interest of the people most effected--lesbians and gays--then isn't there a problem? Of course no one's beholden to a movement or the self-appointed leaders of a movement. But if a strategy undermines a movement that we support, then we should all be concerned.

Posted by: Bennett | May 29, 2009 12:33:43 PM

"David Boies -- surely, nobody's fool"

After all, Boies was so successful stopping Microsoft's monopoly, getting Al Gore past Florida's recount rulings, and helping software giant SCO take on Novell and IBM over the last few years (take a look at Groklaw if you're not familiar with that one)...